Opinion
F080398
04-25-2022
THE PEOPLE, Plaintiff and Respondent, v. NICOLAS JUNIOR CASTANEDA, Defendant and Appellant.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 1232853 Dawna Reeves, Judge.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2012, appellant Nicholas Junior Castaneda was tried with codefendants Steven Anthony Pack and Jose Tito Barajas for the murder of Kevin Argueta and the attempted murder of several other individuals. Castaneda was convicted of second degree murder, two counts of assault with a firearm, grossly negligent discharge of a firearm, and actively participating in a criminal street gang. The court sentenced Castaneda to prison for a total of 20 years eight months to life.
In 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) into law, restricting the circumstances under which a person can be liable for murder under the felony murder rule or the natural and probable consequences doctrine. (Stats. 2018, ch. 1015.)
In 2019, Castaneda filed a petition to have his murder conviction vacated pursuant to section Penal Code section 1170.95. The trial court subsequently denied Castaneda's petition because his record of conviction showed he was not convicted of murder based upon the felony murder rule or the natural and probable consequences doctrine.
All undefined statutory citations are to the Penal Code unless otherwise indicated.
On appeal, Castaneda contends the trial court erred by denying his petition. We affirm.
PROCEDURAL HISTORY
On July 11, 2008, the Stanislaus County District Attorney's Office filed an information charging Pack, Barajas, and Castaneda with the 2007 murder of Kevin Argueta (§ 187), the attempted murder of nine persons (§§ 187, subd. (a), 664, subd. (a)), two counts of assault with a firearm (§ 245, subd. (a)(2)), the discharge of a firearm at an occupied motor vehicle (§ 246), participation in a criminal street gang (§ 186.22, subd. (a)), and multiple enhancement allegations.
On February 3, 2010, a jury found Castaneda and his codefendants guilty of second degree murder (§ 187), two counts of assault with a firearm (§ 245, subd. (a)(2)), negligent discharge of a firearm (§ 246.3, subd. (a)), and as to Castaneda only, of actively participating in a criminal street gang (§ 186.22, subd. (a)). As to Barajas, the jury found he had personally discharged a firearm causing death in connection with the murder. (§ 12022.53, subd. (d).)
These facts, as well as the facts of the underlying offense, are set forth in our unpublished opinion in People v. Pack (May 31, 2012, F061140) [nonpub. opn.]. Our unpublished opinion is part of the record on appeal in this case.
On September 17, 2010, Castaneda and his codefendants were sentenced. Castaneda was sentenced to an aggregate term of 20 years eight months to life. Castaneda did not appeal from his conviction.
On January 15, 2019, Castaneda submitted a petition for resentencing under section 1170.95.
On February 22, 2019, the court appointed counsel for Castaneda.
On October 29, 2019, following the submission of briefs by the parties, the trial court denied Castaneda's petition.
Castaneda filed a timely notice of appeal.
STATEMENT OF FACTS
The Underlying Crime
On the evening of August 18, 2007, Daniel Oseguera, Miguel Oseguera, Julio Amezcua, Moises Garcia Barragan, Juan Ruiz Garcia Barragan, Bayron Gutierrez, Marvin Lopez Madrid, and Kevin Argueta were at a pizza parlor dancing and socializing. Sometime after 1:00 a.m., Miguel, Daniel, and Julio left in Miguel's car. On the way home, they decided to stop at a taco truck. Daniel called Kevin on his cell phone to let the others know their plan.
When Miguel, Daniel, and Julio walked over to the taco truck to order food, Pack, Barajas, and Nicholas Castaneda, Jr. (collectively, defendants), shouted insults at them and called them "scraps," a derogatory term for Sureño gang members. Miguel and Julio started arguing with defendants. At this point, Kevin, Moises, Juan, Bayron, and Marvin arrived in another car. They walked over to try and calm the situation.
As the argument continued, the groups moved toward a white van. Efrain Armenta, who was eating near the white van, heard one of the defendants say, "Hold this." Castaneda pulled a gun from his waistband and pointed it at Miguel and Kevin and their group of friends, telling them to back up. Someone in the group with Miguel and Kevin said in Spanish, "No, wait. Wait. We are all friends right here." Kevin told defendants to calm down. Miguel said, "We don't bang." Castaneda responded, "You should have said that since the beginning."
Kevin and Miguel and their friends then began backing away and walking toward the taco truck. Defendants walked to a white Honda Civic and got into the car. The Civic then drove slowly past the group standing near the taco truck and Pack, who was standing in the open passenger door, stated, "We got you."
Barajas, who was leaning out the rear passenger door of the Civic, fired a couple of shots from a small revolver toward where Miguel, Kevin, and the others were standing. The first bullet hit the ground a few feet from Daniel. After the last shot, Kevin fell to the ground, bleeding from the head, fatally wounded by a .22-caliber bullet.
Kevin and his friends were over 40 feet away from the Civic when the shots were fired toward them. Neither Miguel nor Kevin, or any of their friends, had a weapon or pretended to have a weapon. The Civic sped away after the shots were fired.
Moises gave chase in his own car, a green Honda, with Marvin as a passenger; Marvin tried to call 911. As they came within approximately 37 feet of the Civic, Pack shot at the Honda. Moises took evasive action and gave up the chase when the Civic turned down a dark alley. He then drove back to the parking lot where the taco truck was located and spoke with police.
Pack was arrested the morning of August 22, 2007, pursuant to a warrant. Initially, Pack gave officers the name of his brother, Michael Pack. Pack also told a false story about the other two people in the car. Barajas turned himself in to the police shortly after a news story appeared naming him as a suspect. Castaneda was located and arrested the morning of August 29, 2007.
Defendants were charged with one count of murder, nine counts of attempted murder, two counts of assault with a firearm, one count of discharge of a firearm, and participation in a criminal street gang. Various enhancements also were charged.
The white Honda Civic was located in a garage; the tires and wheels had been removed. A live .22-caliber cartridge was found under the front passenger floor mat and a spent .22-caliber shell casing was found under the front passenger seat.
Detective Francisco Soria testified as a gang expert. Soria explained his reasons for concluding that Pack, Barajas, and Castaneda were Norteño gang members. Previously, there had been testimony that Castaneda had claimed that at the age of 14 he was a Norteño. Soria opined that the shootings were for the benefit of the Norteños and were intended to punish the victims for not backing down when confronted. There was no indication Kevin or anyone else in his group was a gang member.
The Prosecutor's Closing Argument
"Now, here's a concept I want to talk to you about, because it's pretty important. Principals - principals are the people that actually do the crime. And who are the people that actually do the crime? Some may just say okay, the shooter is the person who did the crime. That's not the position we have, because as we define principals for you, it's not only the people that are involved in committing the crime, who directly, actively commit the crime. In the crime of murder, it is the person who shot Kevin Argueta. In the crime of attempted murder, or who shot at that group out there in front of Corona's Liquor, those are the person who actively committed those.
"Well, it's also principals defined as who aids and abets in the commission of the crimes. So all the way from Count [1] through Count 13, you have an aider and abettor theory. And I'll go ahead and define that for you. And you'll receive instructions on this as well.
"Aiding and abetting. A person aids and abets when that person, with knowledge of the unlawful purpose of the perpetrator, with the intent or purpose of committing or encouraging or facilitating the commission of that crime, acts or advises - on advice, aids, promotes, encourages, instigates the commission of that crime.
"You think about that when you think about Nicholas Castaneda in this case, and you can think about that with Steven Pack."
The Trial Court's Ruling on Castaneda's Section 1170.95 Petition
On October 29, 2019, the trial court denied Castaneda petition, explaining:
"After review of the pleadings and the court's file, the Petition is summarily denied because the petitioner has failed to establish a prima facie case that he is entitled to relief, for the following reason:
"The Petitioner was convicted of murder in the second degree. The court file reflects that the Petitioner was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences. The jury instructions provided to the jury reflect that the prosecution relied on two theories of murder: 1) That the murder was willful, deliberate and intentional; and 2) That the murder was committed by shooting a firearm from a vehicle, intentionally at a person outside the vehicle, with the intent to kill. There are no jury instructions for felony murder or natural and probable consequences theory of liability for murder."
ANALYSIS
Castaneda contends the trial court erred by denying his petition for resentencing under section 1170.95 in several respects. First, because the court erroneously relied upon the jury instructions given for first degree murder, though Castaneda was convicted of second degree murder. Second, Castaneda submits he had established a prima facie case for relief under section 1170.95 because the jury was instructed upon implied malice murder, which is "substantially equivalent to the natural and probable consequences doctrine." Finally, he asserts the record fails to show he is ineligible for relief as a matter of law.
We conclude the trial court did not err in denying Castaneda's petition for resentencing because the record shows he is ineligible for relief as a matter of law.
I. Background: Senate Bill No. 1437 and Section 1170.95
Senate Bill No. 1437, enacted in 2018, amended sections 188 and 189 and added section 1170.95 to the Penal Code. (Stats. 2018, ch. 1015, §§ 2-4.) These changes" 'amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' (Stats. 2018, ch. 1015, § l, subd. (f).)" (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
To further this purpose, section 1170.95 establishes a procedure for vacating murder convictions for defendants who could no longer be convicted of murder because of the changes in the law to sections 188 and 189. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.) First, "an offender must file a petition in the sentencing court averring that: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' (§ 1170.95, subd[ ]. (a)(1)-(3); see also § 1170.95, subd. (b)(1)(A).) Additionally, the petition shall state '[w]hether the petitioner requests the appointment of counsel.' (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), 'the court may deny the petition without prejudice to the filing of another petition.' (§ 1170.95, subd. (b)(2).)" (People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
If the petition complies with these requirements, the petitioner must be appointed counsel, if requested. The prosecutor must file a response and the petitioner may file a reply. The trial court must then review the petition to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this determination, the court may rely on the record of conviction. (Id. at pp. 970-971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at pp. 971-972.)
If the court determines the petitioner has made a prima facie showing, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must 'prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' (§ 1170.95, subd. (d)(3).) 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' (Ibid.)" (Gentile, supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Analysis
1. The Trial Court's Denial Was Proper
Following the submission of his section 1170.95 petition, Castaneda was appointed counsel, who submitted briefing on his behalf, arguing inter alia, that Castaneda was entitled to resentencing relief. The jury instructions attached to the People's brief show that the jury was instructed on express and implied malice (CALCRIM No. 520), first and second degree murder (CALCRIM No. 521), and aiding and abetting (CALCRIM Nos. 400 & 401).
There is no indication that the jury was instructed on the natural and probable consequences doctrine or the felony murder rule, or that the prosecutor argued either of these theories of vicarious murder liability to the jury. Upon the record before us, Castaneda was not and could not have been convicted of murder under either of these theories. He is therefore ineligible for relief as a matter of law. Only "[a] person convicted of felony murder or murder under the natural and probable consequences doctrine" is eligible for relief under section 1170.95. (§ 1170.95, subd. (a).)
Castaneda contends the trial court erred in denying his petition because the court "relied upon the first degree murder instructions and first degree murder theories" in concluding he is ineligible for relief under section 1170.95. In support of his assertion, he directs this court to the following excerpt from the trial court's order of denial:
"The jury instructions provided to the jury reflect that the prosecution relied on two theories of murder: 1) That the murder was willful, deliberate and intentional; and 2) That the murder was committed by shooting a firearm from a vehicle, intentionally at a person outside the vehicle, with the intent to kill."
The full context of the court's written order is as follows:
"The Petitioner was convicted of murder in the second degree. The court file reflects that the Petitioner was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences. The jury instructions provided to the jury reflect that the prosecution relied on two theories of murder: 1) That the murder was willful, deliberate and intentional; and 2) That the murder was committed by shooting a firearm from a vehicle, intentionally at a person outside the vehicle, with the intent to kill. There are no jury instructions for felony murder or natural and probable consequences theory of liability for murder."
The trial court's ruling fails to clarify that the two theories of murder discussed apply to murder in the first degree. Although the trial court's written order may be confusing, one finding the court made is indisputably clear: "There are no jury instructions for felony murder or natural and probable consequences theory of liability for murder." Indeed, the record discloses no indication that Castaneda was prosecuted and potentially convicted of murder on a theory of felony murder or murder under the natural and probable consequences doctrine. Castaneda is therefore ineligible for relief under section 1170.95 as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 677, rev. dism. Dec. 1, 2021, S266336 [where the record of conviction establishes the jury was not instructed on the felony murder rule or the natural and probable consequences doctrine, the petitioner is ineligible for relief under section 1170.95 as a matter of law].)
Castaneda argues that the jury instruction on implied malice murder permitted the jury to impute malice to him based upon his participation as an aider and abettor, and that he is therefore not ineligible for resentencing as a matter of law. According to Castaneda, "It should not matter that the jury did not receive a jury instruction on the natural and probable consequences doctrine." His assertion rests upon a faulty understanding of the distinction between implied malice murder, which remains a viable theory of murder liability, and the natural and probable consequences doctrine, which was abolished by the enactment of Senate Bill No. 1437.
Here, the jury was instructed on both express and implied malice. As to implied malice, the jury was instructed as follows: "The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life."
In People v. Soto, our colleagues at the Sixth District Court of Appeal held that although the "natural and probable consequences" language of the implied malice murder instruction is similar to the natural and probable consequences doctrine, these are two "distinctly different concepts." (People v. Soto (2020) 51 Cal.App.5th 1043, 1056 (Soto), abrogated on another ground by Lewis, supra, 11 Cal.5th at p. 967.) We agree.
Under the natural and probable consequences doctrine" 'liability" 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.'" '" (Gentile, supra, 10 Cal.5th at pp. 843-844.) Thus, "[s]o long as the direct perpetrator possessed malice, and the killing was a natural and probable consequence of the crime the defendant aided and abetted, it [does] not matter whether the defendant intended to kill or acted with conscious disregard for human life." (Id. at p. 845.) "[A]n aider and abettor need not personally possess malice, express or implied, to be convicted of second degree murder under a natural and probable consequences theory." (Id. at p. 847, italics added.) Rather, an accomplice whose liability for murder is predicated upon the natural and probable consequences doctrine "need only intend to aid a different, less serious 'target' crime," the natural and probable consequence of which is murder. (Soto, supra, 51 Cal.App.5th at p. 1057.)
Alternatively, under an implied malice theory, the aider and abettor must be found to"' "know[ ] that his conduct endangers the life of another and ... act[ ] with a conscious disregard for life." '" (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Thus, "to commit implied malice murder as an aider and abettor one must personally harbor implied malice.… The natural and probable consequences doctrine that the Legislature sought to eliminate by enacting Senate Bill No. 1437 did not require such a finding." (People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 503-504; People v. Rivera (2021) 62 Cal.App.5th 217, 231-232, rev. dism. Jan. 12, 2022, S268405 ["implied malice is based on 'the "natural and probable consequences" of a defendant's own act, '" and although Senate Bill No. 1437" 'abolished the natural and probable consequences doctrine' as a theory of vicarious liability, 'it maintained the viability of murder convictions based on implied malice, and the definition of implied malice remains unchanged' "].) Contrary to Castaneda's assertions, Senate Bill No. 1437 "did nothing to remove implied malice as a basis for a second degree murder conviction." (People v. Roldan (2020) 56 Cal.App.5th 997, 1004-1005, rev. dism. Dec. 22, 2021, S266336.)
Castaneda contends People v. Soto is distinguishable from this case. Instead, he directs this court to People v. Offley (2020) 48 Cal.App.5th 588 (Offley), which he claims, supports his assertion that the record here does not show, as a matter of law, that he acted with malice aforethought. His contentions are unavailing.
Here, as in Soto, the jury was not instructed upon the natural and probable consequence doctrine, nor was the jury given instructions from which it could conclude that the murder was a natural and probable consequence of the commission of another intended offense. Although the Soto court observed the jury had been instructed that the defendant could have been convicted of involuntary manslaughter as an aider and abettor if the People proved it" 'was a natural and probable consequence of the commission'" of another offense, the jury was not given a similar instruction for aiding and abetting the crime of first and second degree murder. (Soto, supra, 51 Cal.App.5th at pp. 1050, fn. 6, 1056.) No such instruction was given here with respect to any of the charged crimes.
Castaneda's reliance upon Offley, supra, 48 Cal.App.5th 588 is similarly unavailing. In Offley, the petitioner was one of five defendants who participated in a gang-related shooting. He was charged with murder, attempted murder and shooting into an occupied vehicle. (Id. at p. 592.) The People presented evidence showing a conspiracy among the defendants. The jury was instructed that a member of a conspiracy is guilty not only of the particular crime he knows his confederates agreed to and committed, but also for the natural and probable consequences of any crime of a coconspirator to further the object of the conspiracy. (Id. at p. 593.) Offley was convicted of murder, attempted murder, and shooting into an occupied vehicle, and the jury found true that he had personally used and intentionally discharged a firearm proximately causing death to the victim. (Ibid.)
On appeal from the denial of a section 1170.95 petition for resentencing, the appellate court held that Offley could now be convicted of murder only upon proof he had acted with express or implied malice when shooting the victim; and, "[b]ecause an enhancement under section 12022.53, subdivision (d) does not require that the defendant acted either with the intent to kill or with conscious disregard to life, it does not establish that the defendant acted with malice aforethought." (Offley, supra, 48 Cal.App.5th at p. 598.) The court explained, "[t]he jury might have concluded that Offley intended to take part in a conspiracy to commit assault with a firearm, or to fire into an occupied vehicle, with the aim of either injuring or merely frightening [the victim]. The jury could have then concluded that [the victim's] death was the natural and probable consequence of the conspiracy and convicted [Offley] of murder without finding beyond a reasonable doubt that he acted with malice aforethought. For this reason, we cannot say that Offley 'is ineligible for relief as a matter of law.'" (Id. at p. 599.) The court reversed the trial court's denial of Offley's petition.
Here, in contrast to Offley, no such instruction was given which would have permitted the jury to convict Castaneda of murder without finding beyond a reasonable doubt that he had acted with malice aforethought. As we have explained, the implied malice murder instruction did not inject the natural and probable consequences doctrine of vicarious liability into the prosecutor's case.
Insofar as Castaneda suggests the trial court exceeded the scope of its permissible authority at the prima facie stage of proceedings, his assertion is not supported by the record. Nothing upon this record suggests the trial court weighed evidence from the record or engaged in improper fact finding in determining Castaneda was ineligible for relief. Rather, the trial court reviewed readily ascertainable information in the record of conviction and properly determined Castaneda was ineligible for relief under section 1170.95 as a matter of law.
Jury instructions are part of the record of conviction (Soto, supra, 51 Cal.App.5th at p. 1055, as are published and unpublished appellate court opinions (Lewis, supra, 11 Cal.5th at p. 1136, fn. 7), and abstracts of judgment. (People v. Colbert (1988) 198 Cal.App.3d 924, 930.)
DISPOSITION
The order is affirmed.
[*] Before Levy, Acting P. J., Franson, J. and Smith, J.